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04/14/95 ROBERT COOPER v. EDWIN POWELL

April 14, 1995

ROBERT COOPER
v.
EDWIN POWELL



Appeal from Madison Circuit Court. (CV-93-1359). Jeri W. Blankenship, TRIAL JUDGE.

Released for Publication August 25, 1995.

Butts, Almon, Houston, Kennedy, and Ingram, JJ., concur.

The opinion of the court was delivered by: Butts

BUTTS, JUSTICE.

The defendant, Robert Cooper, appeals from a judgment entered in favor of the plaintiff, Edwin Powell, in an action to enforce restrictive covenants encumbering residential lots located in Madison County. The trial court declared the covenants enforceable and ordered Cooper to remove a mobile home located on his property.

On May 29, 1991, Robert Cooper; his wife, Betty J. Cooper; their daughter, Sandra R. England; and her husband, Thomas W. England, Jr., entered into a contract to purchase three acres of land from Country Places, Inc. The deed conveying the three acres contained the following restrictive covenants:

"2. FURTHER SUBDIVISION. As the land attached hereto as Exhibit 'A' is initially divided and sold by the undersigned, the lots or parcels initially subdivided and sold may not be further subdivided into smaller lots or parcels.

"3. ....

"4. MOBILE HOMES. Mobile homes shall be allowed on lots or parcels only in the half of the property of greatest distance from the property's primary road frontage and must be situated as to lie perpendicular with said primary road frontage. Further, mobile homes shall not be allowed on the property unless kept in good repair and skirted."

Approximately two months after the purchase, the Englands placed their mobile home on the lot. On August 22, 1991, Edwin Powell purchased a lot adjacent to the lot owned by Robert Cooper. In 1993, Cooper's other daughter, Susan Culver, placed a second mobile home on the lot Cooper owned.

Powell sued Cooper, alleging that Cooper had violated restrictive covenant two, which forbids "further subdivision" of the lots (Powell says a further subdivision occurred when Cooper placed two mobile homes on his lot) and had violated restrictive covenant four, which provides that mobile homes must "lie perpendicular" to the primary road frontage. Cooper answered and raised the affirmative defenses of waiver, estoppel, and laches. Cooper also counterclaimed, contending that Powell was violating another restrictive covenant by piling trash and refuse on the land adjoining Cooper's property. *fn1

The trial court found, applying Ala. Code 1975, § 11-52-2, that there had been a further subdivision of Cooper's land in violation of paragraph two of the restrictive covenants. The court ordered Cooper to remove, at his own expense, one of the mobile homes and to remove all power lines and water lines running to that mobile home. The court further found that Powell had waived any right to require compliance with restrictive covenant four, because Powell had purchased his land after one of the mobile homes had been placed on the Cooper property in a nonperpendicular orientation. Cooper appealed.

This Court, in Lange v. Scofield, 567 So. 2d 1299, 1301 (Ala. 1990), stated:

"At the outset, we wish to point out that restrictive covenants are not favored in the law and will therefore be strictly construed by this Court. All doubts must be resolved against the restriction and in favor of free and unrestricted use of the property. Frander & Frander, Inc. v. Griffen, 457 So. 2d 375, 377 (Ala. 1984). In addition, a presumption of correctness attends determinations made by trial courts sitting without a jury and hearing evidence presented ore tenus. This Court will not disturb the decisions of such courts unless their findings are plainly and ...


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